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Tuesday, October 9, 2012

The myth of the left-leaning Supreme Court

We all know the mythology: liberal “activist judges” supposedly spent decades pushing the U.S. Supreme court to the left.But there is graphic evidence to the contrary – specifically, the graphic above, which we first saw while watching AFJ President Nan Aron on Up with Chris Hayes last month.

It’s based on the work of Professor Andrew Martin of Washington University School of Law in St. Louis and Professor Kevin Quinn of the University of California at Berkeley School of Law. They’ve measured the ideological slant of the Supreme Court all the way back to 1935. The graphic makes clear that for almost the entire period from then to now, any “activism” on the Supreme Court has been conservative activism.(And as New Yorker writer and CNN analyst Jeffrey Toobin makes clear in his latest book, The Oath: The Obama White House and the Supreme Court, the rightward drift of the court goes back much further than 1935.)

It’s the very bottom of the graphic that is most disturbing. It shows that the sharpest swing to the extreme right is happening right now, under the court led by Chief Justice John Roberts.

As for “activism,” in case after case, it’s the far right on the court that has overturned precedent and rushed to rewrite law.The notorious Citizens United decision (discussed in AFJ’s new documentary Unqeual Justice) is a case in point. As Toobin notes, that case started out as a challenge to one narrow piece of the McCain-Feingold campaign finance law. But by a vote of 5 to 4 the majority took advantage of the opportunity to gut the entire law, reversing a century of precedent and starting a process that led to a flood of corporate money into campaigns.

The Martin-Quinn findings are still more evidence that, of all the decisions a president can make, his choice of judges can have the greatest impact.